Brian Lenihan Jnr (Dublin West, Fianna Fail)

As the Senator enriches our legal learning, I want to enrich his political learning and recall the case of Mrs. McGee, who instituted proceedings in the early 1970s under our Constitution and obtained a declaration from the Supreme Court that the legislation prohibiting the importation of contraceptives was unconstitutional. The matter then lingered for some time in these Houses. One particular Government in 1974 brought proposals forward on the matter and the Taoiseach had made a secret mental determination not to deal with the issue of the incompatibility at all. That illustrates the point that the matters in question here are political in character.

Once a declaration of incompatibility is laid before the Houses, I have no doubt it would be permitted in either House to raise on the Adjournment the issue of what the Government proposes to do about the incompatibility. While the incompatibility the Senator established related to legislation, it does not always relate exclusively to legislation. That is where complex issues can arise. For example, in the Airey case, concerning the failure of the State to provide an effective system of legal aid, the State was obliged to put in place a scheme of legal aid which involved financial provision, rules, procedures and guidelines. In that situation, a different arrangement or response was required to the judgment of the court in Strasbourg.